Quazi Nazrul Islam(Appellant) (In CA No. 28/92)
Bangladesh House Building Finance Corporation (Appellants) (In CA No. 29/92)
Bangladesh House Building Finance Corporation. (Respondents) (In CA No. 28/92)
Quazi Nazrul Islam (Respondent)(In CA No. 29/92)
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
April 22nd, 1993.
Moksudur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record- For the Appellant (In CA No. 28.92 & Respondent in CA No. 29/92)
Shaheed Alam, Advocate, instructed by Md. Sajjadul Haq, Advocate-on-record-For the Respondents (In CA No.28/29 & Appellants in CA No. 29192).
A Wadud Bhuiyan, Additional Attorney-General- Amicus curiae.
Civil Appeal No. 28 of 1992 & Civil Appeal No. 29 1992.
(From the Judgment and order dated September 19 1991 of the Administrative Appellate Tribunal passed in Administrative Tribunal Appeal No. 42 of 1991).
MH Rahman J: These two appeals have arisen from the Judgment and order dated September 19, 1991 of the Administrative Appellate Tribunal passed in Appeal No. 42 of 1991 modifying the Judgment and order dated June 6, 1991 of the Administrative Tribunal in Administrative Tribunal Case No. 235 of 1988. Quazi Nazrul Islam, former Law Officer of the Bangladesh House Building Finance Corporation, is the appellant in Civil Appeal No. 28 of 1992, while the Corporation is the appellant in Civil Appeal No. 29 of 1992.
2. On June 14, 1987 charges were framed against the Law?Officer that he approved payment of the 4th cheque in two loan cases, (1) D? 15966 Genl., (2) D?15967 Genl., in favour of the borrower without evaluating the actual works and thereby he caused loss to the Corporation and that his conduct was violative of office discipline. In a departmental proceeding under Regulation 27(l) (e) of the Corporation’s Service Regulations 1985 the Law?Officer was found guilty. After serving a second show cause notice he was retired compulsorily by the Corporation’s Order dated July 18, 1988.
3. After failing to get that order reviewed departmentally the Law?Officer instituted the aforementioned case in the Administrative Tribunal, but without any success. The Administrative Appellate Tribunal allowed the appeal and held that from the charge sheet it was not clear for which specific charge the employee was responsible and ordered for a fresh inquiry on a fresh charge sheet for ascertaining the employee’s specific guilt. It was further ordered that the employee be treated to be under suspension from the period of his compulsory retirement till final disposal of fresh inquiry proceeding.
4. The employee’s contention is that the Administrative Appellate Tribunal acted without jurisdiction in directing the Corporation to hold a fresh inquiry. It is submitted that when the Appellate Tribunal found that he could not be awarded any punishment on the basis of the vague charge framed against him it ought to have allowed the appeal and set aside the order of the Corporation. It is contended that the Administrative Appellate Tribunal wrongly treated the Corporation as a subordinate Court, and, further it usurped the power and discretion of the Corporation by placing the appellant under suspension.
5. The Administrative Tribunal and the Administrative Appellate Tribunal have been established by the Administrative Tribunal Act 1980 (Act No. VII of 1981) with limited jurisdictions (See sections 4 and 6 of the Act) and limited power.
6. The Corporation did not ask for fresh inquiry. The Appellate Tribunal gratuitously granted a relief not asked for and in doing so it acted in excess of its jurisdiction. A power to remand or to direct fresh or further inquiry is to be specifically provided in the statute which sets up an appellate forum and confers jurisdiction on it. In this regard we may refer to section 107 of the Code of Civil Procedure 1908 or section 423 of the Code of Criminal Procedure, 1898.
7. In view of the above we uphold the employee’s contentions that the Appellate Tribunal exceeded in its jurisdiction in ordering a fresh inquiry. However the employee’s appeal will fail because of a more substantial question that has been raised by the Corporation in CA No. 29 of 1992 with regard to alleged vagueness of the charge.
8. The Appellate Tribunal found that though the charge?sheet contained a reference to Regulation 27(1) (e) it did not clearly spell out which of the dim different kinds of offences mentioned there?breach of discipline, misconduct or insubordination-the employee committed in this case. It appears that the Appellate Tribunal failed to consider that the charge?sheet also included the statement of allegations as well. In the statement of allegation it was clearly stated that the countersigning by a first class officer like the Law?Officer of a false report prepared by the Corporation’s Sub?Assistant Engineer regarding the state of construction justifying issuance of the 4th cheque was against office discipline. We do not find the charge as vague. The delinquent, being the Law?Officer, was conversant with the law applicable in his case.
9. Neither before the Inquiry Officer, nor in his reply to the second show cause notice, nor in his appeal before the Administrative Tribunal the employee made any grievance as to the alleged vagueness of the charge, or complained that because of such vagueness he could not represent his case or that he was prejudiced in his defence. On the other hand, in his reply to the charge he said he was a victim of circumstances and the evil design of the Sub?Assistant Engineer and prayed that he might be exempted from the unintended lapses.
In view of the above, we dismiss the appeal of the employee, CA No. 28 of 1992 and allow that of the Corporation CA No. 29 of 1992. No. costs.
Source: 45 DLR (AD) (1993) 106